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THE 



CHARACTER AED 



OF 



THE WAR. 



BY 



EVERETT PEPPERELL ^WHEELER 



Wars u:i: not massacres and confusions but the highest trials of right. 

— Bacon. 

VlRIBUS PARA.NTUR FROVINCLE, JURE REGANTUR. — FlOTUS. 




NEW YORK : 

CHRISTOPHER, MORSE & SKIPPON 
1863. 



E4 






The following Address was delivered, in substance, before 
an Association of Young Men in this city, and is printed at 
the request of friends. A small portion of it has appeared in 
one of our journals. 



THE CHARACTER 11 CONDUCT OF THE WAR. 



The men of this generation received from their fathers the 
heritage of American nationality. To preserve, to defend it, to 
transmit it to our children stronger than ever is the urgent, the 
essential duty of to-day; a duty beyond all secular duties in im- 
portance, in necessity. Our best blood flowed freely for it at 
Donelson, at Shiloh, at Antietam; and every man who treads 
the less dangerous paths of a civilian's life is bound in honor 
and in conscience to take heed that this blood shall not have 
been shed in vain. 

"On all occasions,'' said the great philosophical thinker of the 
age, "the beginning should look towards the end, and most of 
all when we offer counsel concerning circumstances of great 
distress and still greater alarm." It is therefore with no 
apology that the true character and object of the war we have 
been, with varying success, engaged in for two years, should 
be discussed. Once settle these satisfactorily and we have 
settled how the war should be conducted, and can determine 
with some accuracy its probable result. The greatest defect 
in our Administration has been the lack of "some well-grounded 
purpose, some distinct impression of the probable results, some 
self-consistent anticipation." Truly does Bacon affirm that this 
is the prior half of the knowledge sought. This lack the coun- 
try feels, and is seeking to supply, somewhat blindly, but ear- 
nestly withal. It is dissatisfied, it knows not precisely why, 
and every good citizen is bound to do what he can to bring 
order out of this sadly tumultuous chaos. 

Let us enter upon this discussion with hearts inspired by the 
hallowed memories which encircle the cradle of our Kepublic, 
the union of hearts and hands which made and maintained us a 
nation — memories of Washington and Adams, Pinckney and 
Hamilton, of Jackson, of Clay, of Webster. To restore a na- 



4 

tion rent as is ours we need intelligence, need patriotism, need 
all the wisdom of the past, and all the experience of the 
present. 

There are but two conceivable objects for which the war can 
be prosecuted, and the distinction between them is becoming 
broader and clearer every day. One party would make the 
war revolutionary, carried on to abolish slaverj' and overturn 
the social fabric of the South; the other would carry on the war 
to put down armed resistance to the government and restore 
the authority of the Constitution and the laws, and thus make 
it a war, not outside of the Constitution, nor unprovided for by 
it, but in pursuance of it — say, rather, in obedience to it. It 
will cease when this end is attained. This accomplished, all 
will be accomplished. 

It is not proposed to examine the morality of slavery, or to 
enter upon any defence of that institution. Bowever immoral 
any man may think that system to be, it does no* follow that 
he ought to make war for its abolition. The paths of philan* 
thropy and well-doing are many and diverse. To walk in them 
all is impossible, and the choice between them is therefore 
a question, not of strict moral right, but of expediency, of pro- 
priety, of how the most and most lasting good can be attained. 
Whether, therefore, this war should be carried on for the aboli- 
tion of slavery must depend, not on the original or present 
character of that institution, but on the power vested by the 
Constitution in the general government, and in subordination 
to this, on the wisdom of immediate and violent emancipation. 

The first party of which I have spoken is numerous, influen- 
tial, thoroughly in earnest, and therefore powerful. It main- 
tains that a restoration of the Union as it was is not desirable; 
that the Union our fathers made had this fatal defect — it did 
not provide for the extinction of African slavery — that slavery 
caused the war, and must continue to cause war till it is abol- 
ished and blotted out, and that a war for this is justifiable — is 
necessary. This object may have not been clearly seen at first. 
It certainly was not openly avowed; but now it is not dis- 
guised, and is advocated with all the eloquence and earnestness 
its partisans can command. 



First, then, consider what their declarations mean : that the 
men who made the Constitution — that Washington, Franklin, 
Adams, Jay — were so weak, so short-sighted, so wicked as to 
charter and bulwark an institution destructive to the Union 
they sacrificed so much to establish. 

Consider next, that if anything can be proved by the united 
testimony of all contemporary writers, by speeches, newspa- 
pers, debates, books, this is proved — that without the com- 
promises of the Constitution on this subject there would have 
been no Union. Can we expect to maintain one on a different 
basis ? "The Constitution itself," as Vermont resolved in 1843, 
" forms the only and proper bond of union among the several 
States." Destroy one and we destroy the other. 

Consider that we do not think slavery in Cuba or Brazil any 
reason for a war to abolish it there. Yet, with these States 
we have no compact on the subject. How, then, can we jus- 
tify such a war against the South, when there is a solemn, con- 
stitutional pledge against our interference with it there ? 

And is it not worth considering that those foreigners who 
did most to strengthen the anti-slavery spirit in our midst, do 
not sympathize with us in a war for emancipation ? Go where 
you will in England, or on the Continent, the men who have 
written and spoken for emancipation all their lives, have spent 
and been spent for it, condemn sudden and violent emancipa- 
tion as equally unjust to the master and the slave.* Say not 
that they are jealous of us ; their speeches, their books, their 
reports — reformatory, educational and legal, all commend this 
country, all urge their countrymen to follow our example. And 
the example of none has been so widely followed, in England 
especially. 

War for emancipation, has been defended by some as a bene- 
fit to Southern society. But the affection for the Southerners 
shown by these benevolent people does not entitle their view 
of the case to much consideration. They apply to politics Mrs. 



* See for example Lord Brougham's letter to the Earl of Radnor. Law 
Magazine and Review, November, 1862; p. 69. 



6 

Malaprop's wise remark, that in marriage it is safest to begin 
with a little aversion. But hatred can never preside at truly 
philanthropic counsels, nor good be done to others out of pure 
revenge. 

Or, if it be insisted that the war is to be waged for the bene- 
fit of the slave, may we not fairly appeal to experience ? Does 
not this show, that to set millions unaccustomed to self-gov- 
ernment suddenly at liberty, is a curse to them and to the 
people amid whom they live ? And what right have we to 
shed the blood of thousands of our own people, or to tax our 
children and our children's children, that the wrongs of another 
race may be redressed ? No law, human or divine, authorizes 
us to incite even an oppressed race to. revolution. Admitting 
that we can lawfully help those already in arms, all our states- 
men, our uniform practice, the opinion of the wisest men of 
foreign lands, agree that farther it is not safe, nor politic, nor 
just for a nation to go. It must be so, from the nature of 
things. Force may affect the outward actions, but cannot 
change the heart of man. ■ Permanent reformation must come 
from inward change. There is no golden chain in the hands of 
the President, by moving which 

" He shakes the earth, the sea, and solid land." 

Abolish slavery to-morrow by external force, and the' mo- 
ment the force is removed the slave returns to his present con- 
dition. The master will be just as much inclined and just as 
able to rule, the slave just as much obliged to submit. Unless 
the Government is prepared to maintain a standing army in- 
definitely to keep these freed men free — unless it will feed and 
clothe them till they are able to take care of themselves — un- 
less it makes compensation to those owners, who are innocent, 
it cannot justify immediate emancipation. The arguments on 
this subject are too fully detailed in the President's Message 
of December last, to need any repetition here ; and General 
Hunter's forced enlistment of negro soldiers clinches the argu- 
ment with a stubborn fact. 

Thus far I have met the radicals on their own ground, and 



endeavored to show that even if slavery caused secession, a 
war for its abolition is neither just nor wise. But I go far- 
ther. Slavery may have been one of the causes of the rebel- 
lion ; the ill-feeling arising from opposition to it certainly oc- 
casioned the struggle, but that slavery was, in any just sense, 
the cause of the war, I deny. 

From the adoption of the Constitution, there have been two 
parties in this country ; one favoring a strong, central govern- 
ment, and giving a liberal construction to the Constitution to 
attain that end ; the other strenuously advocating State 
Rights, construing very strictly the grants of power to the 
General Government, and maintaining that the Constitution is 
but a league between sovereign States. Webster and Jackson 
represent the one, Calhoun the other. They have had varying 
names, but no local habitation. Every subject on which there 
has been embittered strife has given rise to this controversy, 
and the defeated party has taken refuge in the States Eights 
doctrine, and threatened secession. The first great struggle 
grew out of the wars of the French Revolution, and ended 
with the treaty of Ghent. Personal and acrimonious beyond 
anything we have seen in the present day, it culminated in the 
Hartford Convention. The very party that had in times past 
most ardently advocated the power and unity of the Govern- 
ment, refused to let the militia serve out of their own State, 
stigmatized every man who lent a penny to the Federal Treas- 
ury, and met to take measures for a dissolution of the Union. 

Again in 1830 people began to talk of disunion. South 
Carolina insisted that a protective tariff was a deliberate, pal- 
pable, and dangerous violation of the Constitution, armed her 
militia, and made ready for war. She was a sovereign State* 
it was said, and had an absolute right to judge when the 
league she had made with the other States was broken. 

Texas was annexed, and resolutions looking ominously to- 
wards the dissolution of the Union were passed by more than 
one Northern Legislature. Five years later, Mississippi, South 
Carolina, Florida, took counsel to take away the same precious 
life. Then the tide of lawlessness flowed North again. Booth 



was rescued from the United States Marshal in Wisconsin, the 
Federal troops were fired on in the streets of Boston, the men 
who now hold doctrines on the subject of Executive power which 
the Stuarts would have thought extreme, then advocated State 
Rights, while Mr. Jefferson Davis and his compeers were very 
indignant that any one should dare to construe the Constitution 
for himself, or dream of opposing the law of the land. Verily, 
the whirligig of time has brought about its revenges. 

Is it strange that the cord of nationality subjected to this 
perpetual strain should have snapped at last ? The heart 
sickens as we recall the want of foresight, the bitterness, the 
strife of the black years from 1854 to 1860. No man in office, 
no opposition leader looked into the future far enough to pre- 
pare for the storm which even then was darkening the sky, 
whose distant lightnings played along the horizon, whose mut- 
tering thunder even then was audible. We deserved no better. 
We have not yet learned Napoleon's maxim : " The tools to him 
that can use them ;" office to him that is qualified to discharge its 
duties. Surely if any man ever deserved well of his country- 
men thai man was Daniel Webs+er. He devoted his life to 
the interests of the whole country; he was the soul of the 
opposition to Nullification in 1832, and in 1850 when the tem- 
porizers and expedient-mongers had failed, his large heart and 
comprehensive intellect effected a settlement which did justice 
to the South, while it preserved untouched the great principle 
of the supremacy of the Constitution and the laws. Amid 
abuse and reproaches he held his course unfaltering. 

,( The startled waves swept over him, the storm 
Smote him with all thefcoui'.^es of the rain, 
And steadily against his solid form 
Pressed the great shoulders of the hurricane;" 

but he was unshaken. Under his leadership the country united 
and was at peace again. If gratitude or foresight had presided 
at our councils, we should not have rejected our greatest states- 
man and sent him to Marshfield to die. If we ever have another 
Webster it may be we shall do him justice. 

Tims it has been shown that not slavery, but disregard of 



law and lawful authority has been the common element in 
all our dissensions. Slavery had nothing to do with the tariff, 
nor with the war of 1812. It did not cause Shay's rebellion, 
or the whiskey insurrection, or the removal of the Cherokees 
from Georgia in violation of the judgment of the Supreme 
Court. There has been slavery in the Danish, Dutch, and Por- 
tuguese colonies, but it caused no irrepressible conflict be 
tween us and them. 

If then our former dissensions were not caused by slavery, 
if in spite of that Pandora we have lived in amity with foreign 
powers, if the elements of dissension which caused other re- 
bellions have been active in this, does it not logical!}- follow 
that this was not caused by slavery, but by the same disre- 
gard of law and of lawful authority, which, as we have seen, in 
Massachusetts, in Pennsylvania, in Wisconsin, in South Caro- 
lina, in Georgia, in Mississippi, has in years gone by taken up 
arms against our country. And now that this evil spirit has 
assumed its deadliest form, it must be slain, once and forever. 
We began this war, avowing officially that its only objects 
were the enforcement of the laws and the restoration of the 
Union. Under this banner we can Conquer, but no black flag 
will ever marshal our armies to victory. For these worthy 
ends the loyal people of the whole country have given our 
best and bravest, and we mean to attain them. We can and 
we will. We look forward to a restoration of the Union, whole 
as before. We would restore the authority of the Govern- 
ment, not the Government of the States, nor of part of. the 
States, but of the whole Union, over all the South. We would 
make the South a vigorous member of the body politic, not a 
crippled and shattered limb. We would not devastate her 
fields, burn her cities, impoverish her population; for our own 
sake as well as for hers. We would conduct the war with all 
the vigor authorized by the laws of nations, with all the skill 
and earnestness commended by the example and precept of the 
great captains of the time of Napoleon, of Wellington, of 
Turenne, of Washington. And we would govern the South 
when conquered, and as it is conquered — not as England has 



10 

governed Ireland, or Austria Venice — but with justice and 
with moderation. 

Then may we reasonably hope that the revolted States will 
return underthe Constitution our fathers made ; a Constitution 
under which our growth in wealth, in population, in prosperity, 
in general culture, in morality and religion has been without a 
parallel. The rebels will have found secession too dangerous, 
too bloody, too destructive, to be again attempted. Upon this 
our hopes of a permanent reunion are founded, and reunfon 
being feasible is essential. The people of this country will 
never tolerate a disgraceful peace, nor admit of any settlement 
founded on separation. 

There remains now the further inquiry : What is the char- 
acter of the present struggle ? By what law ia it to be regu- 
lated, on what principles conducted? The course of our gov- 
ernment towards the seceding States was at first somewhat 
ambiguous. But now that the rebellion has attained to some 
consistency, and established a government de facto, we practi- 
cally recognize them as belligerents. We exchange prisoners, 
even privateersmen, and in the laws of war, justification is 
sought for all assumptions of the executive. This view of the 
subject is unquestionably correct. The law of England is 
clear, as authorities are abundant to show. * 



* A reference to the authorities on this? subject may not be uninteresting. 
In the -first place, it is established that .the settlers of this country brought 
with them such portions of the common law and the statutes in force in Eng- 
land as were applicable to their condition. 

1 Story, Const. § 157. Declaration of Rights, Congress of 1774. Chalmers' 
Colonial Op. 206, 207. 1 Kent Comm. 472, 473. 

This is especially true where English statutes have been re-enacted. In 
such cases the doctrine is that the well-settled English construction will be 
adopted here, and is presumed to have been the intent of the legislature. 
■ 2 Story, Const. § 1799. Waterford and Whitehall Turnpike Co. v. The 
People, 9 Barbour 161. Tennock v. Dialogue, 2 Peters (tf. S.) 1, IS, Taylor 
v. Delancey, 2 Caines Gt/t. Err. 143, 151. 

Both these remarks are applicable to the provision of the Constitution on 
the subject of treason, tt adopts the words of the English statute of Edward. 
In tin- year 1 IHJ (11 Hen, VII. Ch. I.) it was enacted that no person who 
followed the king in power to war, should be convicted of treason for that 



11 

The civilians are equally- explicit on this subject. "A civil 
war," says Vattel,* "breaks the bands of society and govern- 
ment, or at least suspends their force and effect. It produces 
in the nation two independent parties, who consider each other 
as enemies and acknowledge no common judge. These two 
parties, therefoie, mus^t necessarily be considered as thence- 
forward constituting, at least for a time, two-separate bodies, 
two distinct societies. Though one of the parties may have 
been to blame in breaking the unity of the State, and resisting 
the lawful authority, they are not the less divided in fact. 
Besides, who shall judge them ? Who shall pronounce on 
which side the right or the wrong lies ? On earth they have 
no common superior. They stand, therefore, in precisely the 
same predicament as two nations who engage in a contest, 
and being unable to come to an agreement, they have recourse 
to arms." 

But why depend on these authorities, weighty as they are ? 
The voice of history confirms them. No instance can be found 
of a rebellion similar in extent to that we are now dealing 
with, effectually quelled by treating the enemy as rebels. Did 
England ever have more than an uncertain grasp of the High- 
lauds till she admitted the Highlauders to equal privileges 
with their lowland brethren? To the clemency with which 
the Scutch were treated, England owes the great increase in 
wealth, in arts, in learning, which her Scottish subjects have 
achieved for her and for themselves, while Ireland has never 
until very recently been anything but a source of weakness, a 



cause. Blackstone, Coke, and Hawkins lay it down that this act is declara- 
tion of the common law, for which Coke refers to 4 E.^4st9 E. 4: 1, 2. 

3 Inst. 7. 4 Bla. Comm. 77, 78. 1 Hawkins P # C. 87, 89. Blackstone's 
language is. (P. 78) ''When, therefore, an usurper is in possession, the subject 
is excused and justified in obeying and giving him assistance." 

See also 1 Hale P. C. 101. Foster, Crown Law 188. 

The application is simple and just. The men who instigated the present 
wicked rebellion are guilty of treason; those who obeyed the Confederate 
government when established, are not. '-Protection and allegiance are 
reciprocal." 

* Book IH Ch. 18, § 293. See also § 292, 294. . 



12 

thorn iii England's side. The prejudices of race, the hate 
springing from different institutions, were cherished in the one 
case, repressed on the other. In the former it was thought 
that even rebels might have some rights, that their property 
ought not to be indiscriminately confiscated, nor their cities 
pillaged. But the idea that an Irish' rebel had any rights 
seldom seems to have entered an English statesman's head 
until the present century. 

Was ever a rebellion more unprovoked ? Were ever rebels 
more cruel than the Leaguers against Henry Fourth ? Was 
ever cause more beloved by its supporters ? Let St. Bartholo- 
mew answer the former question. As to to the latter, the 
Parisians paid almost divine honors to the Duke of Guise, and 
cried "Hosanna to the Son of David !" as he rode into their 
town. Never was rebellion more effectually put down. How? 
By vigorous campaigns ; not by proclamations : by energy 
and perseverance, it is true ; but by moderation united with 
them. "We must not make a graveyard of Paris," said the 
victor of Ivry. "I would not reign over the dead. Like the 
true mother before Solomon, I would rather not have Paris 
than see it torn to fragments." Thus, "those who would have 
continued his enemies, if only subdued by arms, were won by 
his goodness, and became affectionate subjects." 

Even if it were possible to conquer the Southern people by 
the bloody and inhuman measures many are panting for, would 
we wish to rule a subjugated South, as Italy, Poland, or Hun- 
gary have been governed by their masters ? 

"What do men call vigor?" says Sydney Smith, (and the 
words are at least applicable to our management of the con- 
quests already made.) "To let loose hussars and to bring up 
artillery, to govern with lighted matches, and to cut and push 
and prime ? I call this not vigor, but the sloth of cruelty and 
ignorance. The vigor I love consists in finding out wherein sub- 
jects are aggrieved, in relieving them, in studying the temper 
and genius of a people, in consulting their prejudices, in 
selecting proper perscns to lead and- manage them, in the 
laborious, watchful, and difficult task of increasing public hap- 



13 

piness by allaying each individual discontent. In this way 
Hoche pacified La Vendee, and in this way only will Ireland 
ever be subdued." * 

To many these sentiments will seem surprising. Napier's 
description of the British soldiery at the siege of Badajos is 
applicable to ourselves. "Recent toil and hardship," he says, 
" with much shedding of blood, had made many incred- 
ibly savage, for these things render the noble-minded, 
indeed, averse to cruelty, but harden the vulgar spirit." 
We must look beyond the immediate present, must sacri- 
fice passion and prejudice, and even revenge, to our coun- 
try's welfare, and build not for a day but for all time. Thus 
the war will be conducted according to law and justice, chiefly 
and first, because it is right, and then because alfr experience 
shows that the path of right is the only one that leads to vic- 
tory. The history of other countries is full of encouragement ' 
for us ; it teaches that nations more bitterly hostile than North 
and South are, have been firmly re-united ; it teaches how 
this has been done, and in its school we should be content to 
learn. 

Enough has been said as to the general theory of the war. 

* The wit of another quotation from the same author will make amends for 
its length, and may possibly convince some of our radical friends that all the 
wisdom and good sense in the world will not die with them. It was written 
about the time of the wars with Napoleon, and aptly describes our ingenious 
attempt to reduce the South by depriving them of quinine. 

" Such a project is well worthy the statesman who would bring the French 
to reason by keeping them without rhubarb, and exhibit to the world the 
awful spectacle of a nation deprived of neutral salts. What a sublime 
thought that no purge can now be taken between the Weser and the 
Garonne ! that the bustling pestle is still, the canorous mortar mute, and the 
bowels of mankind locked up for fourteen degrees of lattitude ! When, I 
should be curious to know, were all the powers of crudity and flatulence 
fully explained to his majesty's ministers. In whose mind was the idea of 
destroying the pride and plasters of France first engendered ? Without 
castor oil they might for some months, to be sure, have carried on a lingering 
war, but can they do without bark ? Will the people live under a govern- 
ment where antimonial powders cannot be procured? Depend upon it, the 
absence of materia medica will soon bring them to their senses, and the cry of 
Bourbon and bolus burst forth from the Baltic to the Mediterranean." 



14 

A discussion of the extent of executive power in its prosecu- 
ti n will close this essay. And, first, of the Proclamation of 
Emancipation. 

Judge Curtis' pamphlet on this subject ought to have set the 
matter at rest, but the numerous attempts to answer it show that 
cogent and impartial logic does not always convince. One gen- 
tleman modestly remarks that he would not have thought it worth 
his while to attempt a reply had not Mr. Curtis been an eminent 
man. Another spends his time in proving a proposition which 
is not denied — that the President, as Commander-in-Chief, has 
the powers vested by the law of nations in such commanders, 
and assumes, without argument, that a General in an enemy's 
country has a right to confiscate property and emancipate 
slaves not in his possession, which is the very point in dispute. 

Judge Curtis expressly sa} 7 s: The President, "in prosecuting 
war, may do what Generals in the field are allowed to do with- 
in the sphere of their actual operations, in subordination to the 
laws of their country, from which alone they derive their au- 
thority." 

But what is the law of nations on this subject, and how far 
does it justify the proclamation of the first of January ? 

It must be remembered that the Constitution does not profess 
to be a code of laws; it establishes general rules and uses gen- 
eral language, the explanation of which is left to the well-recog- 
nized law then in existence. In saying, for example, that the 
President may be impeached "for high crimes and misdemean- 
ors," it employs terms the meaning of which was well under- 
stood. Nor does it leave to Congressional discretion to pre- 
scribe what shall be high crimes and misdemeanors. The 
guaranty of trial by jury is of a trial known to and regulated 
by the common law*. And when it speaks of habeas corpus, of 
warrants of arrest, and indeed of all subjects, treason forming 
only a partial exception, reference is had to rights brought by 
the colonists from England, and for which they had just fought 

•See Anthes v. the Commonwealth. 5 Gray (Mass.) Rep. 185, 186, 222. 251 
for a full discussion of this subject. Wynehainer v. the People, 13 N. Y. Rep.. 
(3Kernan.) 378, 427. 458, 4S4, 487. . 



15 

a seven years' war, and the nature and extent of which needed 
no exposition. A similar rule must be applied to the section 
making the President Commander-in-Chief, and it is therefore 
that reference to the law of nations must be had to ascertain 
the limits of his Constitutional power in that capacity; and 
that law is as much a part of the Constitution on this subject 
as if it were expressly embodied in it. 

The frequent declamation on the wrongs on the African race 
are little to the purpose. No doubt, they have been wronged; 
but in redressing or attempting to redress their injuries, we 
must not do a greater to them and to ourselves. We must not 
do evil that good may come, nor overlook what is within our 
grasp in a vain reaching after the impracticable. If we do 
right, act up to the limits of constitutional and legal obliga- 
tion, and no farther, we may expect a blessing on our deeds 
and assured ultimate success, and not otherwise, though a con- 
trary course look ever so temptingly expedient. The law of na- 
tions, which is nothing else than the collected wisdom and ex- 
perience of mankind, has established rules, by obeying which 
wars can be most successfully and most humanely conducted. 
We shall find them rigid enough •for our purpose. Minie 
balls, case and spherical shot, grape and canister, do not savor 
of rosewater. They are bad enough even for the rebels. 
Indeed, we have relaxed the laws of war towards the ene- 
my's soldiers ; have paroled spies, and liberated guerillas, 
while resorting to questionable and cruel expedients for injur- 
ing the Southern people, and attempting to do by paper bullets 
what we had failed to accomplish by open and manly warfare. 

Now, the right of the master to the services of his slave is 
property actually existing, recognized by the local law of the 
South, and in the most explicit terms by the President's De- 
cember Message. The Proclamation therefore declares that a 
General has the right to confiscate the private property of the 
enemy, not needed for military purposes, and not in the pos- 
session of his troops. That negroes who escape to our camps 
ought to be employed in military works ; that there is no legal 
obligation to return them to their disloyal master, is freely ad- 



16 

mittecl. But the Proclamation goes farther, and attempts to 
affect the title and condition of property beyond our lines and 
not in our possession. The writers on international law agree 
that this no commander or government has a right to do. 
Hume's theory that it is lawful to do anything which will sub- 
due the enemy, was exploded long ago. Indeed, the right to 
confiscate private property on land is a relic of barbarism, less 
frequently claimed every year. Wheaton goes so far as to say 
that "private property on land is exempt from confiscation, 
except booty taken from enemies in the field, or in besieged 
towns, and military contributions, even in case of conquest." 
He indorses the declaration of Monroe, that the seizures of 
public and private property by the British, during the last war, 
were "cruel, wanton and unjustifiable."* 

It must be admitted that on this point Wheaton is not sup- 
ported by authority ; but Grotius, Vattel and Phillimore agree 
"that unless the conqueror has actual possession of the thing 
conquered, he can exeixise no rights over it."f It was re- 
served for the self-chosen advocates of freedom in free Amer- 
ica, in the nineteenth century, to maintain the doctrine 
that the conqueror is absolute master of the conquered 
country, and can confiseate all the property of its people, a 
claim which Vattel justly calls monstrous, which Tilly would 
have thought severe, and at which Alva would have hesitated. 

The Administrative claims on the subject of habeas corpus and 
the law martial, are the only other topics connected with the 
conduct of the war that I propose here to discuss. A great deal 
has been said and written on the writ of habeas corpus, which 
is really a very simple matter. A law of Congress provides that 
whenever any one is imprisoned by the authority of the United 
States a federal judge may, on the proper application being 
made, require the reason for his imprisonment to be stated, and 

* International Law, 420, 423. Tart IV., ch. 2, § 5, C. What will history 
say of our plundering Southern libraries*, and sending North the statue of 
Washington at Baton Rouge ? 

t Vattel. Book III., ch. 14, § 200, 208. 3 Phill., Int. Law, 504.082,694, 
735. Book XII., Ch. 3, § 541. 



n 

discharge him if the reason is insufficient. And the question 
is whether, in opposition to this law, the President has a right to 
imprison citizens without theirhaving any means of knowing why 
they are imprisoned, or any redress if the reason is insufficient. 

It would seem that in a free country this ought not to be a 
subject for discussion. Before the war, all the writers on the 
Constitution, and all the judges who had ever given opinions 
on the subject, agreed in saying that the President had no such 
power, and the preponderance of decisions since the war, in 
number and authority, is the same way. These furnish a very 
strong presumption on the subject, but perhaps are not quite con- 
clusive. Consider for a moment the arguments on the other side. 

Horace Binney takes this ground: The right to the writ of 
habeas corpus is in England guaranteed by an act of Parliament. 
But in this country the Constitution does not confer the privi- 
lege; it only restrains its suspension. It does not say who 
shall suspend it, and the only question, therefore, is: To whom 
does this power most properly belong ? And he concludes that 
it belongs to the President. 

Even if the premises were true the conclusion would not fol- 
low. The restriction is in the article referring to Congress, not 
that which treats of the executive. It is preceded and followed 
by prohibitions on congressional action, and unless', by some 
unaccountable mistake, it was inserted in the wrong place, it 
must also have been intended to limit the power of Congress. 
The Federalist, the contemporary debates, all treat it as a power 
vested exclusively in Congress, and the objection taken at the 
time was, not that this great power was conferred on the Presi- 
dent — that was never imagined — but that too large a discretion 
was left to Congress. In a separate article, the powers of the 
executive are enumerated; this is not among them. Such a 
power had never been claimed in this country, and had been 
given up in England for over a century. Any one who sup- 
poses that the framers of our Constitution intended to make the 
President more powerful than the King of Great Britain, is re- 
spectfully recommended to study the debates in the conventions 
which adopted it, or the sixty-ninth number of the Federalist. 



18 

The radical vice of Mr. Binney's argument is in the assump- 
tion that in this country the privilege of this writ, which Black- 
stone calls "the bulwark of the British constitution," is confer- 
red by the common law alone. It is guaranteed bv an act of 
Congress — an act the President swore to support, and which has 
never been repealed. Congress says: This prisoner shall be 
heard. What right has the President to say: He shall not ? 

Another argument on the snbject is based on the supposed 
necessity of such a power. A very able writer in the North 
American draws a glowing picture of the consequences which 
would result from carrying into effect Chief Justice Taney's 
•opinion in the Merry man case, and fills the Maryland jails with 
soldiers arrested for trespassing on the soil of that State. The 
answer to all this is, that the privilege of knowing the cause 
of one's imprisonment is a very different thing from a discharge. 
There are such things as martial law and a justification under it, 
and if Gen. Cadwalader had returned to the Chief Justice that 
Merryman was a prisoner of war, taken in hostilities against 
the United States, and was held under the law martial, he would 
have been remanded, and there the matter would have ended. 
It is with pride and pleasure that every true American con- 
trasts with this the respectful obedience to judicial authority 
which marked the last days of Gen. Banks's visit to this city. 

This mention of the law martial brings us to a still more 
novel pretension of the President — the alleged power of pro- 
claiming martial law whenever and wherever he shall think it 
necessary to put down a rebellion. Martial law is the will of 
the commanding officer, and if this be a rightful claim, the life, 
liberty, and property of every citizen are at the mercy of the 
President and his subordinates, and he becomes dictator at 
his own will— not at the will of the Senate, as ih Rome, or of 
Congress as in the Revolution. 

The logic of the advocates of this more than despotic power 
is most amusing. The President is commander-in-chief of the 
army, therefore he can arrest and imprison John Smith, who 
never was a soldier, nor even an army contractor; therefore he 
can send his provost marshal or his military governor to a 



19 

place far distant from the scene of military operations and seize 
some unlucky editor who cannot comprehend Mr. Lincoln's 
strategetic movements or Mr. Chase's financial schemes. It is 
as if they said: Seymour is Governor of New York, therefore 
he can order out the New Jersey militia. Victoria is Queen of 
Great Britain, therefore she can direct Hooker to take Richmond. 
For civil and military powers and laws are as distinct as 
these separate States or nations. 

The law on this subject has been stated with precision by a 
man respected by every lawyer who knows anything of the 
leaders in his profession — a man who had no superior when on 
the bench, and who now is, in ]earn ; i\g, clearness, and impar- 
tiality, unsurpassed at the bar of New England. His dissent- 
ing opinion in the Dred Scott case shows that he has no partisan 
bias toward his conclusion on this subject, which is best stated 
in his own language: 

" Over all persons enlisted in his forces, he" (the President) 
"has military power and command; * * over all per- 
sons and property within the sphere of his actual operations in 
the field he may lawfully exercise such restraint as the success- 
ful prosecution of his particular military enterprise may, in his 
honest judgment, actually require: and upon such persons as 
may have committed offences against any articles of war, he 
may, through appropriate military tribunals, inflict the punish- 
ment prescribed. And there his lawful authority ends."* 



*The pamphlets of Judge Parker on this subject are equally explicit. In 
addition to these eminent jurists, reference may be had to .the Federalist, 
number 69, p. 317 (Hallowell. Ed.). Ilia authority as commander in chief 
" would amount to nothing more than a supreme command and direction of 
the military and naval forces as first general and admiral of the Confederacy/' 
See, also, number 8-i, p. 392. In the Massachusetts convention which ratified 
the Constitution, Judge Dana said of the power of suspending the writ of 
habeas corpus : " The safest and best restriction, therefore, arises from the 
nature ofthe cases in which Congress is authorized to exercise that power at 
all." Judge Summer said "that this was a restriction on Congress, that the 
writ of habeas corpus should not be suspended except in cases of rebellion 
and invasion." 1 Elliott's Debates, 118. These references might easily be 
multiplied. The debates and pamphlets ef that day are full of them. 



20 

But, after all, the most cogent answer to the arguments for 
Executive discretion, drawn as they invariably are from the 
supposed necessity of the case, is, that no such necessity ever 
existed. The experiment has been tried, and has failed, to- 
tally, disgracefully. The Executive undertook to make its 
own discretion the measure of its power, and what has been 
the result ? The friends of the Administration have been 
cooled, its enemies heated. In April, 1861, it had an over- 
whelming majority in every Northern State. It could not re- 
ceive as fast as we were willing to give. Men and money 
were lavished with unsparing hand, rights the most time- 
honored were yielded without a murmur, volunteer regiments 
were refused (think of that in these days of Conscription acts), 
party divisions were forgotten : the great meeting at Union 
square, in this city, was but the echo of the voice that rose 
from every city and every hamlet in the land. "What do we 
now see ? An opposition Congress elected, a dissatisfied and 
unpaid army, a discouraged and disheartened people. "Was it 
necessary to fill the cells at Fort Lafayette and Fort Warren, 
necessary to exclude newspapers from the mails, neeessary to 
cover the North with spies and provost marshals, that these 
results should be effected ? Compare the letters our soldiers 
wrote a year ago with those they write to-day. Compare the 
appearance of our streets, the state of our finances, the rate of 
exchange. Compare Donelson with Fredericksburgh, New- 
Orleans with Vicksburgh, Island No. 10 with Charleston, the 
glorious march into Mississippi with the barren victory of 
Murfreesbort)'. 

People will think, will compare, will remember. It is use- 
less to disguise the fact that the great body of Northern men 
have lost all confidence in the Administration. It may be that 
the voice of the people will yet recall them to the principles 
under whose guidance we have won all our victories. A clear, 
manly and unwavering call may yet rally us all ; but if it does 
not come, what are we to do ? 

In England this question would not wait a moment for an 
answer. The king is the impersonation of Executive author- 



21 

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: 
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l :-- : ::.-. ~:.t: ". v irti; ^ ;/::ir:r: ': 7 : i-.:i.::r? ::; 
the : ..-raced by leaky Lnlks,* the I'nke - ; -:iatle 

i:. ; 1 :; I'v: 7 — -.-l: : -.: ii- 1 r::^::-:::^;;- J;l: 

ilwsya m in England. The king once was prac- 

— ^raandex-L 3e was 

• 
ing bis ierm of office. don folic ^ei rer : '.~r. : n, Parlia- 

ment wa5 aate ? and paid as little attention to the 

necessar I came. Tbe th- a unchar. 

made war and peace, commanded the army and 
radically werere- 



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hare 1101 been half led. Tbe rarioas pi <■—■ < il wrc a»ple. femi aot a qaarter 

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contractor. It 
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y them and do justice to sbe brave lei' Fils; _±. as Ssaftord 

- 
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22 

sponsible to Parliament, and Parliament was responsible to the 
people. 

Have we not reached a point when a similar change is ne- 
cessary to us ? I do not say Yes, or No. The question is 
vast, the answer difficult. Some of the advantages of a change 
are obvious. The forms of the Constitution need not be al- 
tered, nor would its spirit be violated. It places a vast power 
in the hands of the Executive. It intended that he should be 
responsible. He has ceased to be, partly from the extent of 
his patronage, partly from the growth of the country in terri- 
tory and wealth, which' is, indeed, the cause of the former. It 
intended that Congress should be the grand council of the na- 
tion. It has ceased to be. It was found in the beginning that 
one man could not discharge the duties imposed by the Consti- 
tution on the Executive, and provision was made for a cabinet, 
a body of which no mention is to be found in the Constitution, 
and which is the creature of statute. The change suggested 
certainly would not make the Electoral College a more idle 
ceremony than it has already become. It would, by means not 
forbidden by the Constitution, effect results contemplated by 
it, and which existing machinery has failed to accomplish. It 
would furnish in the Presidency a dignified retreat for the old 
age of our most eminent men ; and, by giving Congress power 
and influence, would place our ablest men there, where we 
need them. It would give the Executive efficiency, by assur- 
ing it of Congressional support ; and we should not witness 
again the humiliating spectacle of a Presidential Message, the 
whole of which was devoted to one subject, excluding 
even a just tribute to the bravery of our soldiers, falling dead 
on the Legislative threshold, not finding a single member to 
introduce a bill to carry into effect its proposals. We should 
not see the President informing the Houses that he had signed 
a Revenue bill because it was necessary to carry on the Gov- 
ernment, but that he disapproved of its whole scope and 
theory. Certainly, these instances — and they could easily be 
multiplied — of Congressional disregard of Executive recom- 



23 

mendations, should protect the advocate of a responsible gov- 
ernment from the charge of factious opposition. 

But whether this plan or another be adopted, it is clear there 
must be a change in the conduct of the war. Our cause is too 
sacred and too just to be sacrificed to personal friendship or 
the pride of opinion. We have already unlearned some foolish 
fallacies; it is time for us to unlearn them all, and to profit by 
our own bitter experience, if by nothing else. We started with 
the idea that the conquest of the South was the work of a few 
months. We were sadly mistaken. We have learned on many 
a hard fought field that Southern troops are not the "white 
trash" many took them for — that in generalship, in valor, in 
resolution and pertinacity, in patient endurance, they are our 
equals They are men we may yet be proud to call our breth- 
ren. Their country is one with oui's in original formation and 
in interest, and we must, we shall yet be united. 

The cry of disloyalty with which sentiments such as these 
once was greeted has lost its sting. There is no terror in it. 
New York answered the threat with the change of one hun- 
dred and ten thousand votes in a twelvemonth, and the whole 
North has done, or is doing, the like. 

Relieved from these hateful influences which have hung upon 
us like a nightmare, we shall go forward to victory. The 
clouds and darkness which surround us now will flee away; 
the sky will shine clear and abiding above our heads; we will 
build on the foundation of the Constitution a fabric of national 
virtue and greatness such as has never yet been seen, and our 
posterity — the posterity of a united people — will read of the 
great rebellion of 1861 as we do of the wars between the 
Cavaliers and the Roundheads. If virtue, if justice, if obe. 
dience to law — if firmness amd experience preside at our coun- 
cils, we may, we shall, by the blessing of God, accomplish all 
these, and if they do not we shall deserve to perish. 



24 

As these sheets go to the press, a very remarkable letter from an eminent 
lawyer of this city appears in one of our journals. The chief objection to it 
is that in its application to the past it lacks some slight foundation in fact, 
but if in the future it be our government's rule of action, all will be well. 
Mr. Field asks : " What would you conserve ? The liberties of the people ? 
so would we. The Union of the States? so would we. The Constitution as 
it is ? so would we." He says : " We do not wage this war to destroy 
slavery, but to restore the Union." It is with great pleasure that this 
accession to the Union ranks is hailed, and if the recent elections produce 
a few more such they will not have been fruitless. How these views will be 
received by Mr. Field's party friends remains to be seen. 

The charge that the opposition as a body propose to themselves any other 
objects is most flagrantly unjust. The administrative assaults on our liberties 
and constitutional rights gave the opposition all its strength. I cannot for- 
bear a quotation from an oration on Washington's birthday, delivered in 
1851, by a gentleman who has been most unjustly and indecently assailed 
because he desires now to have such views disseminated. " The majority," 
Mr. Wheeler then said and now says, " must govern according to the written 
code, or we become traitors to our country, violators of an imposed or con- 
sented obligation. Our will, if arrayed against law, is in truth the assertion 
of the traitor, and if it becomes active the possessor deserves a traitor's fate. 
* * Our pledge is given that no star shall be plucked from its fellows, that 
no stripe shall be torn from the flag of the Union, and that the eagle shall perch 
upon our Capitol, and be borne to every nation upon the top-gallant mast of 
America's proud navy." 

Be it remembered that these words were spoken when the editors of the 
Post and Tribune sneered at every expression of loyalty, and tried to ridicule 
loyal men as " Union-savers ;" a title to which, it is true, those gentlemen 
never could lay claim. The zeal of these new converts to patriotism has, as 
is often the case, outrun their discretion ; and when the language of loyalty 
has become a little more familiar to their lips, it may be that they will show 
a decent gratitude to their old instructors. 

Indeed, if they had taken the trouble to remember Gov. Seymour's 
message, they ought to have known that their charges of disloyalty, so freely 
made, were false. Can anything be more explicit than this? "Our armies 
in the field must be supported, all constitutional demands of our general 
government must be promptly responded to. Under no circumstances can 
the division of the Union be conceded." 



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LIBRARY OF CONGRESS 



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